DOGS v. RANCHER ROUND TWO - APPEAL

Submitted by Mary MacGregor

History of R. v. Robinson –Trial and Appeal

Beef in BC carried an article a year ago about R. v. Robinson, a provincial court case in which rancher Ruth Robinson was convicted of the offence of wilfully and without lawful excuse killing a neighbour’s dog contrary to s. 445(1)(a) of the Criminal Code (Canada).

Ms. Robinson had killed the dog, Bud (weight variously estimated at 120, 150-160, and 200 pounds), while the dog was still on her property, although not quite in the midst of his attack. The whole event took place within a minute or a minute and a half of the dog chasing some 38 head of panicked cattle belonging to herself and her husband, up a fence and into a pen.

Judge Cleaveley of the Provincial Court found that the dog had merely spooked and chased the cattle and the protective provisions of the Livestock Act (British Columbia) s.11.1(2) were not available to justify Ms. Robinson’s action. This section says "A person may kill a dog if the person finds the dog (a) running at large, and (b) attacking or viciously pursuing livestock."

Judge Cleavely said that there was no evidence of Bud "attacking or viciously pursuing" livestock. He also decided that Bud’s attack had ended by the time Ms. Robinson shot him: "...Bud had moved on to his next adventure, at the time Ms. Robinson shot him.".

Ms. Robinson appealed Judge Cleavely’s decision. She was represented by criminal appeals lawyer Jim Blazina of Victoria, who did excellent work on the appeal.

The appeal was heard by Supreme Court Justice Sheri Donegan on May 1, 2014. Her decision was released August 1, 2014. It should be posted at www.courts.gov.bc.ca by the time this article is published in Beef in BC.

Justice Donegan decided to allow the appeal, set aside Ms. Robinson’s conviction and order a new trial.

It remains to be seen whether the Crown will go ahead with a new trial, or will appeal Justice Donegan’s decision to the British Columbia Court of Appeal, as the Crown can take either of these steps.

Reasons for Appeal Decision – Misapprehension of Evidence

Justice Donegan determined that Judge Cleavely had misapprehended evidence which went to the heart of the case, by apparently overlooking Ms. Robinson’s written statement.

Ms. Robinson gave the statement to police on October 17, 2011, following the shooting of the dog on June 5, 2011. In it, Ms. Robinson said that "[t]he dog viciously ran at them….kept charging at the cattle…was attacking by jumping and biting at them and the cattle were desperately trying to get away. They were running into and over each other and smashing into the fence and gate."

Ms. Robinson’s statement was put into evidence by the Crown prosecutor. The statement was admitted for the truth of its contents, in other words both the Crown and defence lawyers agreed that it was true; this evidence of Ms. Robinson’s was unchallenged (as was virtually all of her evidence).

Justice Donegan ruled that when Judge Cleaveley said that there was no evidence of Bud attacking or viciously pursuing the cattle, he must have overlooked Ms. Robinson’s statement, which contained unchallenged evidence of a vicious attack, a key issue in the trial. On this basis the conviction had to be set aside.

Justice Donegan held that the "[m]isapprehension of evidence resulted in a miscarriage of justice and a new trial is required".

Reasons for Appeal Decision – Misdirection on the Law

Although not necessary for the appeal outcome, Justice Donegan also decided that the trial judge had misdirected himself on the law, by failing to consider all of the possible lawful excuses to the criminal charge. These lawful excuses are:

(a) common law justification of defence of property;

(b) Livestock Act s. 11.1(2);

(c) colour of right.

In fairness to the trial judge, the first and third defences were not fully argued at trial.

Common Law Justification of Defence of Property

Justice Donegan decided that the common law justification of defence of property is available as a lawful excuse to a charge under s. 445(1)(a) of the Criminal Code. She described it as follows:

"At the time of the wilful act causing the killing (or other listed harms):

(a) the dog was actually attacking the accused’s property, or if left at large, the accused’s property would be subject to real and imminent danger the attack would be renewed; and

(b) having regard to all of the circumstances in which he found himself, the accused reasonably believed the act was necessary and that he could save his property in no other way or no other practical means were readily available to stop the attack or prevent its renewal."

Once the accused raises this defence, the onus is on the Crown to prove, beyond a reasonable doubt, that this justification for killing the dog does not apply.

Section 11.1(2) of the Livestock Act

Justice Donegan rejected the narrow interpretation of s. 11.1(2) of the Livestock Act argued by the Crown, and interpreted this section more broadly, on the basis that the underlying purpose of the Act is to provide for the safekeeping of livestock.

She noted that this section expands the common law justification of defence of property by making the defence available to all persons, not just the owner of the property. This basis for justification does not require that the person killing the dog reasonably believes that the act is necessary and that he could save or protect the livestock in no other way, or that no other practical means are readily available to stop the attack or prevent its renewal.

Justice Donegan’s view is that section 11.1(2) should be construed to permit any person to kill a dog, when at the time of the act of killing the dog, it:

(a) is running at large; and

(b) is actually attacking or viciously pursuing livestock, or, if left running at large, would subject the livestock to a real and imminent danger that the attack or vicious pursuit would be renewed.

She also stated that killing the dog is prohibited once the need for protection of the livestock has ended.

The decision says that the Livestock Act section does not require the accused to exhaust other options before justifiably killing the dog.

Justice Donegan noted that R. v. Prebushewski, a 2011 decision of the Provincial Court, was wrongly decided in that the dogs in that case were killed when they were neither running at large nor attacking or viciously pursuing livestock.

Justice Donegan did reject the defence argument that "attack" should be defined to include a chase which causes any real and present danger or serious harm to the animals chased—not because the concept is wrong, but rather because she interpreted a "vicious pursuit" to mean a pursuit which causes a real and present danger or serious harm to the livestock chased—an important point for future cases.

Either an attack or a vicious pursuit, as defined above, can justify killing the offending dog during the time when the livestock remain in need of protection from the dog’s actions.

Colour of Right

The "colour of right" justification means that if the accused had an honest belief in a state of facts where (in this case) the common law doctrine of defence of property and/or the statutory justification under the Livestock Act permitted her to destroy the dog, that honest belief constitutes a further defence to the criminal charge.

The issue for a trial judge to decide is whether the accused honestly believed that she had the right to kill the dog in these particular circumstances—not whether her belief was objectively reasonable.

Summary

Justice Donegan has not only overturned Ms. Robinson’s conviction—although an appeal or a new trial remain possible—but also has provided helpful direction for future cases involving the defence of an accused facing a charge under s. 445(1)(a) of the Criminal Code.

Mary MacGregor is a Kamloops Lawyer with Mary MacGregor Law Corporation (www.mmlc.ca).